G.R. No.

L-12155

February 2, 1917

THE UNITED STATES, plaintiff-appellee,

vs.
PROTASIO EDUAVE, defendant-appellant.
Manuel Roxas for appellant.
Attorney-General Avancea for appellee.
MORELAND, J.:
We believe that the accused is guilty of frustrated murder.
We are satisfied that there was an intent to kill in this case. A deadly weapon was used. The blow was directed toward a vital part of the
body. The aggressor stated his purpose to kill, thought he had killed, and threw the body into the bushes. When he gave himself up he
declared that he had killed the complainant.
There was alevosia to qualify the crime as murder if death had resulted. The accused rushed upon the girl suddenly and struck her from
behind, in part at least, with a sharp bolo, producing a frightful gash in the lumbar region and slightly to the side eight and one-half inches
long and two inches deep, severing all of the muscles and tissues of that part.
The motive of the crime was that the accused was incensed at the girl for the reason that she had theretofore charged him criminally before
the local officials with having raped her and with being the cause of her pregnancy. He was her mother's querido and was living with her as
such at the time the crime here charged was committed.
That the accused is guilty of some crime is not denied. The only question is the precise crime of which he should be convicted. It is
contended, in the first place, that, if death has resulted, the crime would not have been murder but homicide, and in the second place, that
it is attempted and not frustrated homicide.
As to the first contention, we are of the opinion that the crime committed would have been murder if the girl had been killed. It is qualified by
the circumstance of alevosia, the accused making a sudden attack upon his victim from the rear, or partly from the rear, and dealing her a
terrible blow in the back and side with his bolo. Such an attack necessitates the finding that it was made treacherously; and that being so
the crime would have been qualified as murder if death had resulted.

As to the second contention, we are of the opinion that the crime was frustrated and not attempted murder. Article 3 of the Penal Code
defines a frustrated felony as follows:
A felony is frustrated when the offender performs all the acts of execution which should produce the felony as a consequence, but
which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.
An attempted felony is defined thus:
There is an attempt when the offender commences the commission of the felony directly by overt acts, and does not perform all the
acts of execution which constitute the felony by reason of some cause or accident other than his own voluntarily desistance.
The crime cannot be attempted murder. This is clear from the fact that the defendant performed all of the acts which should have resulted in
the consummated crime and voluntarily desisted from further acts. A crime cannot be held to be attempted unless the offender, after
beginning the commission of the crime by overt acts, is prevented, against his will, by some outside cause from performing all of the acts
which should produce the crime. In other words, to be an attempted crime the purpose of the offender must be thwarted by a foreign force
or agency which intervenes and compels him to stop prior to the moment when he has performed all of the acts which should produce the
crime as a consequence, which acts it is his intention to perform. If he has performed all of the acts which should result in the
consummation of the crime and voluntarily desists from proceeding further, it can not be an attempt. The essential element which
distinguishes attempted from frustrated felony is that, in the latter, there is no intervention of a foreign or extraneous cause or agency
between the beginning of the commission of the crime and the moment when all of the acts have been performed which should result in the
consummated crime; while in the former there is such intervention and the offender does not arrive at the point of performing all of the acts
which should produce the crime. He is stopped short of that point by some cause apart from his voluntary desistance.
To put it in another way, in case of an attempt the offender never passes the subjective phase of the offense. He is interrupted and
compelled to desist by the intervention of outside causes before the subjective phase is passed.
On the other hand, in case of frustrated crimes the subjective phase is completely passed. Subjectively the crime is complete. Nothing
interrupted the offender while he was passing through the subjective phase. The crime, however, is not consummated by reason of the
intervention of causes independent of the will of the offender. He did all that was necessary to commit the crime. If the crime did not result
as a consequence it was due to something beyond his control.
The subjective phase is that portion of the acts constituting the crime included between the act which begins the commission of the crime
and the last act performed by the offender which, with the prior acts, should result in the consummated crime. From that time forward the

phase is objective. It may also be said to be that period occupied by the acts of the offender over which he has control that period
between the point where he begins and the points where he voluntarily desists. If between these two points the offender is stopped by
reason of any cause outside of his own voluntary desistance, the subjective phase has not been passed and it is an attempt. If he is not so
stopped but continues until he performs the last act, it is frustrated.
That the case before us is frustrated is clear.
The penalty should have been thirteen years of cadena temporal there being neither aggravating nor mitigating circumstance. As so
modified, the judgment is affirmed with costs. So ordered.

[G.R. No. 99838. October 23, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ERNESTO ENRIQUEZ y ROSALES and

WILFREDO ROSALES y YUCOT, accused-appellants.
DECISION
VITUG, J.:

Ernesto Enriquez y Rosales and Wilfredo Rosales y Yucot were charged with having violated Section 4,
Article II, of Republic Act ("R.A.") No. 6425 (Dangerous Drugs Act of 1972), as amended, in an information
that read:
That on or about June 5, 1990, in the City of Manila, Philippines, the said accused, conspiring and confederating
together and mutually helping each other, not being authorized by law to sell, deliver, give away to another or distribute

any prohibited drug, did then and there wilfully and unlawfully sell or offer for sale six (6) kgrms of dried flowering
tops of marijuana stuffed in a plastic sack, which is a prohibited drug.
"Contrary to law.

[1]

The antecedent facts leading to the filing of the information, according to the prosecution, are hereunder
narrated.
At around eleven oclock in the morning of 05 June 1990, Sgt. Pedro I. Cerrillo, Jr., the Officer-in-Charge
of the Intelligence and Drug Law Enforcement Unit of Police Station No. 2 (located in Tondo, Manila) of the
Western Police District, was in the vicinity of North Harbor routinely scouting for information from his civilian
informants. Near the gate fronting Pier 10, Danny, a porter and member of the Anti-Drug Abuse Movement
("ADAM"), approached and informed Sgt. Cerrillo that a free-lance porter at the North Harbor, a.k.a. Bulag,
was looking for prospective buyers of marijuana. Sgt. Cerrillo instructed Danny to say that he had come
across a couple who would be interested in buying the prohibited drug. Sgt. Cerrillo had then in mind a
possible buy-bust operation.
The buy-bust plan was broached to Patrolwoman Shirley Maramot who was manning Police Station No.
2. Fellow police officers were at the time on duty at the U.S. Embassy where a "rally" by certain activists was
in progress. Using his own owner-type jeep, Sgt. Cerrillo repaired to his house at 727 Moriones St., Tondo,
Manila, to procure ten (10) pieces of one hundred peso bills to be used in the projected buy-bust operation.
He thereupon had, at a store near the police station, xerox copies made of the bills that can readily show
the serial numbers which he had also noted down in his personal notebook.
[2]

[3]

[4]

Back at the police station, Sgt. Cerrillo handed the buy-bust money to Pat. Maramot. Since there were
no other "operatives" at the station available for the operation, Sgt. Cerrillo sought the assistance of ADAM
members Joseph Mendoza, Amado Betita and Alex Trinidad. The team, including "Danny," were briefed by

Sgt. Cerrillo. The plan called for Pat. Maramot and Mendoza to pose as the couple interested in buying
marijuana and for Trinidad, Betita and Sgt. Cerrillo to act as the "back-up" men. Pat. Maramot was to nod
her head as soon as the sale was consummated.
[5]

At about 11:35 a.m., the group, using two vehicles, proceeded to the vicinity of Pier 10 at the North
Harbor. At the corner of Moriones Street and Radial Road 10, Pat. Maramot and Mendoza sat on a bench by
a store to wait for the return of Danny, who had meanwhile left to fetch Bulag, while Sgt. Cerrillo, Trinidad
and Betita strategically positioned themselves at a billiard hall, mingling with spectators and pretending to be
bystanders. The billiard hall was only about ten meters away from Pat. Maramots group, and it afforded a
good view of the place.
[6]

Moments later, Danny arrived with accused Wilfredo Rosales, a.k.a. Bulag. Rosales talked with the
poseur-buyers. After about five minutes, the poseur-buyers, Rosales and the informant entered an alley,
walking along shanties, until they reached a house numbered 1349.
A half-naked man in green shorts emerged from one of the doors of the house. The man, later identified
to be accused Ernesto Enriquez, a.k.a. Nene, asked Pat. Maramot in Visayan accent, Dala mo ba ang
pera? Pat. Maramot took out from her pocket the bundle of the marked money and showed it to
Enriquez. The latter allowed Maramots group to enter the house. Minutes later, as so pre-arranged, Sgt.
Cerrillo followed and proceeded to house No. 1349. Finding the door closed, he went around the house. Sgt.
Cerrillo saw Pat. Maramot, Mendoza and the informant exit through the back door. Rosales, carrying a
plastic bag, was with them. Again, Sgt. Cerrillos group followed Pat. Maramot and Rosales until the latter
reached a nearby waiting shed for jeepney passengers. At this point, Pat. Maramot announced that she was
a policewoman. Sgt. Cerrillo held Rosales and took his bag. Sgt. Cerrillo opened the sack, and inside it was
another sack containing marijuana wrapped in plastic.
[7]

The group hurriedly returned to house No. 1349 only to find that Enriquez had by then left the
premises. The team boarded the police service jeep and moved on to Kagitingan Street at the Lakandula
detachment. Sgt. Cerrillo interviewed Rosales. Upon being informed that Enriquez would usually visit the
Pier 10 area, Sgt. Cerrillo proceeded to the place.After scouring the area, a security guard supervisor at the
pier, who accompanied the group, spotted Enriquez walking near the pier. Sgt. Cerrillo picked up Enriquez
and brought him to the Lakandula detachment for investigation. Later, Minda, the wife of Enriquez, arrived.
Someone, at the request of Enriquez, had fetched her to "bring the money."Enriquez told her to return the
amount to Sgt. Cerrillo. She took out from her wallet its contents three of which were the 100-peso marked
bills. Minda became hysterical. She embraced Sgt. Cerrillo and begged him to forgive her husband. Sgt.
Cerrillo told her to instead see the station commander.
[8]

[9]

Sgt. Cerrillo apprised Enriquez and Rosales of their constitutional rights. Sgt. Cerrillo advised Enriquez,
in front of the latters wife, that he should look for a lawyer so that his statement could be taken. Sgt. Cerrillo
prepared the request for the examination of the evidence taken from the accused and the affidavit of the
latter's arrest.
[10]

[11]

On the evening of 05 June 1990, Minda and other relatives of Enriquez approached Sgt. Cerrillo for the
possibility of "settling" the case. During the trial, another relative, a senior supervising agent of the
Napolcom, also approached and requested Sgt. Cerrillo to help out.
[12]

Patrolwoman Shirley Maramot, 37 years old, assigned at Police Station No. 2, corroborated Sgt.
Cerrillo. She testified that she was requested by Sgt. Cerrillo to be the poseur-buyer in the buy-bust
operation conducted in the morning of 05 June 1990 along Alinian Street, Tondo, Manila. After Sgt. Cerrillo
had conducted a briefing and provided her with the buy-bust money, Pat. Maramot went with Mendoza, who
portrayed the role of her husband, and the informer to Radial 10 at Pier 14. When Wilfredo Rosales turned
up, he asked if she had cash with her. After being shown the money, Rosales led her to a house numbered

1349. The poseur-buyers were made to wait momentarily while Rosales talked to Ernesto Enriquez. Rosales
later signaled Pat. Maramot, who was around four (4) meters away, to again show her money. Forthwith,
Pat. Maramot was led to the house of Enriquez. Once inside a small room, Enriquez locked the
door. Enriquez asked Pat. Maramot how much money she had. She replied that she only had P1,000.00
since she was not sure that she could get as much as the one-half sack of the contraband shown to her. Pat.
Maramot was told she could get the lot for P4,500.00. She said she was willing to get the lot if she could be
trusted with the balance of the price. Enriquez agreed. Pat. Maramot handed over the P1,000.00 to
Enriquez. The latter was about to hand over the marijuana when he decided to, instead, have Rosales
personally deliver the marijuana.
Pat. Maramot followed Rosales until Maramot finally introduced herself as a policewoman. Rosales
posthaste attempted to board a passing passenger jeep but Pat. Maramot and Sgt. Cerrillo, who had rushed
in, were able to timely get hold of Rosales.
[13]

NBI Forensic Chemist George J. de Lara issued, on 06 June 1990, a certification to the effect that the
specimen submitted to him was positive for marijuana. Sgt. Cerrillo prepared a case report and the
respective booking sheet and arrest report. The official report of the NBI forensic chemist, dated 07 June
1990, disclosed the following findings:
[14]

[15]

[16]

Weight of specimen = 6.00 kilograms (before examination)

5.999 kilograms (after examination)
Microscopic, chemical and chromatographic examinations made on the above-mentioned specimen gave POSITIVE
RESULTS for MARIHUANA.
[17]

On the same day, Station Commander Benjamin de Jesus endorsed the case against Enriquez and Rosales
to the City Prosecutor for further proceedings. The inquest fiscal recommended that the two accused be
charged with violation of Section 4, Article II, Republic Act No. 6425, as amended.
[18]

The defense gave a different version of the incident.

Accused Rosales testified that he had come from Bohol to Manila in April of 1990 and stayed with
accused Enriquez, his cousin, while working as an extra porter of William Lines. At around 11:30 in the
morning of 05 June 1990, he was on his way home from work when a male person whom he recognized
only by face sought his assistance in carrying a sack to a place where jeepney commuters would take their
ride. The sack was colored white and emitted the smell of dried fish. He was promised P20 in exchange for
his help. At a junction, a security guard whom he later identified to be Homer Ciesta, blocked and pushed
him inside a vehicle where he was promptly handcuffed. During the commotion, the owner of the sack
disappeared. Rosales was brought to a house near the slum area in Parola where P20,000 was quoted for
his release by Sgt. Cerrillo. When Rosales did not heed the demand, he was brought first to the Lakandula
detachment and then to Station No. 2 of the Western Police District.
[19]

[20]

On his part, Enriquez, a resident of 1349-C Alinian Street, Tondo, Manila, claimed that he was in the
business of purchase and sale of oil at the North Harbor, under the business name of Nie-Men R. Enriquez
Enterprises, being the grantee of a permit to operate an oil sludge collection service. He was under
contract by the Lorenzo Shipping Corporation from January 1983 to April 1984. He was also the VicePresident of the Kapisanan ng Maralitang Naninirahan ng Tondo, Inc. a civic organization and a recipient of
a certification of merit from the National Steel Corporation.
[21]

[22]

[23]

Recounting his whereabouts in the morning of 05 June 1990, Enriquez said he left his house at around
11:45 a.m. for Pier 10 of the North Harbor, barely a thirty-minute walk away from his residence, to meet his
brother, Victor Enriquez, at the pier. He had with him P2,000 in P100 denominations stacked in his wallet.

Robinson Lumbis, a neighbor who was road testing his cab along North Harbor, saw and greeted Enriquez.
Betty Quimbo, another neighbor, later saw Enriquez with his brother. Appellant took his lunch at home
and thereafter hurriedly returned to the pier. He was not able to spend the night in his house. The following
day, 06 June 1990, at around two oclock in the afternoon, Enriquez went to the maintenance section of the
Lorenzo Shipping Lines to pay for the oil he had obtained from its vessels. Homer Ciesta, the officer-incharge of the security guards of the shipping line, invited Enriquez, and the latter agreed, to join him (Ciesta)
earn some "extra money." The two left for the squatters area in Parola and, once there, Ciesta told Enriquez
to approach a certain person, later identified to be Sgt. Cerrillo, who instantly handcuffed him. Sgt. Cerrillo
demanded P20,000 in exchange for his freedom.When he refused to give in to the demand, Enriquez was
brought to the Lakandula detachment where the P2,000 he had in his wallet was taken and presented in
evidence as the amount used in the buy-bust operation. He was brought to Station No. 2 of the WPD for
investigation. Homer Ciesta went to tell Arminda, the wife of Enriquez, to bring some money to the
Lakandula police detachment. Arriving at the detachment, someone approached Arminda and asked her
whether she had the money. She replied in the affirmative.The person then grabbed her wallet, took its
contents and later returned the empty wallet.
[24]

[25]

[26]

[27]

On 24 January 1991, the trial court, giving credence to the evidence submitted by the prosecution, found
both accused guilty beyond reasonable doubt of the crime charged and sentenced each of them to life
imprisonment and to pay a fine of P30,000.
In their appeal to this Court, Rosales and Enriquez have filed separate briefs.
Appellant Enriquez insists on his innocence and faults the trial court for giving too much credence to the
testimony of Sgt. Cerrillo and Pat. Maramot who, Enriquez asserts, have merely framed them up for selfish
motives. He theorizes that it would seem incredible for either Pat. Maramot or Sgt. Cerrillo to have left and
abandoned Station No. 2 considering that the Station Commander and his men have all been posted in the

then on-going rally at the U.S. Embassy. He downgrades the prosecutions asseveration that Pat. Maramot,
being unarmed, could not effect his immediate arrest, and that Sgt. Cerrillo has so used his personal funds
as marked money. Enriquez also questions the six-day delay in the filing of the information.
The Court is scarcely impressed.
Simply said, appellant Enriquez would assail the credibility of the two prosecution witnesses. Almost
always, the evaluation made by the trial court on the credibility of witnesses is viewed with respect. The trial
judge, who has the distinct advantage of being able to observe closely the demeanor and deportment of
witnesses on the stand as well as the manner in which they testify, undoubtedly can better determine than
anyone else if such witnesses are telling or are not telling the truth. He is in an ideal position to weigh
conflicting testimonies and unless, as so repeatedly said, he has obviously discarded or missed certain facts
of substance and significance that, otherwise, would have altered his judgment, an assessment on credibility
made by him should indeed deserve approbation by an appellate court.
[28]

The Court, in the case at bench, has scrutinized the records, and it finds no justification for holding
differently from the findings made by the trial court.
In drug related cases, particularly in a buy-bust operation, the contention that the accused has merely
been framed up by law enforcement personnel for selfish motives is quite often raised by the defense. For
this claim to prosper, the evidence adduced must be clear and convincing in order to overcome the
presumption that government officials have performed their duties in a regular and proper manner.
Appellant, regrettably, has miserably failed to substantiate his allegations in this respect.
[29]

[30]

Enriquez questions the six-day delay in the filing of the information against him which he attributes to an
extortion attempt made on him. Like an alleged frame-up, a supposed extortion by police officers has, too,
been a standard defense in drug cases. Appellants failure to offer evidence, independently of his bare claim

of extortion, suggests that this defense could either be a fabrication or an afterthought. If, truly, the arresting
police officers have tried to extort money from him, it should have behooved Enriquez to come forward with
the proper charges against the erring police officers. No criminal or administrative charges appear to have
been filed by him. It is equally strange that the supposed extortions neither appeared in appellant's counteraffidavit nor in his affidavit both prepared by his counsel of choice. In any event, the Court does not see
any real undue delay on the part of the police. The station commander filed the case with the prosecutor on
07 June 1990, the same day that the NBI forensic chemists official report was released. The transmittal
letter, of the station commander, bears the recommendation, likewise dated 07 June 1990, of the inquest
fiscal finding a violation of Section 4, Article II, of R.A. No. 6425.
[31]

[32]

[33]

[34]

Appellant Enriquez surmised that it was strange for Sgt. Cerrillo and Pat. Maramot to have left the police
station unmanned just to conduct a buy-bust operation. Sgt. Cerrillo explained that, being the Intelligence
Officer in Station No. 2, he would spend most of his duty hours in the field. He chose Pat. Maramot to be
the poseur-buyer because she was not well known in the place of operation. While she had a desk job she
could also be assigned elsewhere when the situation would demand. Furthermore, the buy-bust operation
was conducted in an area not far from the police station (testified to be at an approximate distance of
between the Manila City Hall and the Luneta Park ).
[35]

[36]

On cross-examination, Pat. Maramot explained why she could not arrest Enriquez when he received the
money. She testified:
ATTY. ESMERO:
"During the time that you were in that room together with Enriquez and you said that Enriquez took up a half sack
of marijuana under the table, did it not occur to your mind to arrest him immediately during that time and introduced
yourself as a policewoman together with your husband?
"WITNESS:

"If you will place yourself in my situation, I am so small to arrest a person and I am not so big so I have to wait for
my companions, sir.
"INTERPRETER:
"Witness pointed to the Accused.
"ATTY. ESMERO:
"How about your supposed husband?
"WITNESS:
"Besides we did not bring anything even a gun because they are outside, sir.
"ATTY. ESMERO:
"You could have immediately went (sic) out of the door and after that contacted Cerrillo. You could have told him
immediately because he was about seven (7) meters from that room?
"WITNESS:
"The door was locked, sir.
"ATTY. ESMERO:
"You could have knocked at the door if you want to call him?
"WITNESS:
"It could not be heard because in that alley there were adjacent rooms, sir, `kuwarto-kuwarto.'

"ATTY. ESMERO:
"Now, you said that you went out through the back door. Who was together with you when you went out at the
back door?
"WITNESS:
"Joseph, the one who pretended to be my husband, sir.
"ATTY. ESMERO:
"How about Rosales?
"WITNESS:
"He passed through the front door together with the informant, sir.
"ATTY. ESMERO:
"And the front door was where Pat. Cerrillo was positioned?
"WITNESS:
"No, sir. Cerillo was positioned at the side. He could not meet them immediately because when you go out at that door, it
is already a street.[37]

The use of Sgt. Cerrillos own money in the buy-bust operation could be expected. Police Station No. 2
was not logistically funded. In the buy-bust operation, only three 100-peso bills of the marked money were
recovered which, unfortunately, were lost to thieves when Sgt. Cerrillo had momentarily parked his jeep
within the vicinity of the police station on 11 July 1990. He reported this loss along with the loss of an
[38]

[39]

ammunition belt pack with six (6) live cal. .38 bullets and his Parker ballpen. At any rate, the nonpresentation of the buy-bust money could not adversely affect the case against appellants.
[40]

[41]

Alibi is definitely a weak defense although it may occasionally prove to be a good plea. In order to be
effective, however, this defense requires proof that it would be physically impossible for the accused to be at
the locus criminis at the time of the commission of the crime. Where there is even the least chance for the
accused to be present at the crime scene, the alibi seldom will hold water. Most significantly, the defense
of alibi crumbles in the face of a positive identification of the malefactor.
[42]

[43]

In his case, appellant Rosales argues that to sustain a conviction for the crime of selling marijuana, the
sale must be clearly established which, he asserts, the prosecution has failed to do.
The Court cannot sustain the argument.
Under Section 4, Article II, of R.A. No. 6425, as amended, the law penalizes not only the sale but also
the delivery of prohibited drugs.
[44]

Section 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. The penalty of life
imprisonment to death and a fine ranging from twenty thousand to thirty thousand pesos shall be imposed upon any
person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit
or transport any prohibited drug, or shall act as a broker in any of such transactions. If the victim of the offense is a
minor, or should a prohibited drug involved in any offense under this Section be the proximate cause of the death of a
victim thereof, the maximum penalty herein provided shall be imposed. (Italics supplied.)
Selling is only one of the acts covered by the statutory provision. The law defines the word deliver as a
persons act of knowingly passing a dangerous drug to another personally or otherwise, and by any manner

with or without consideration. Delivery, although not incidental to a sale, is a punishable act by itself; while
sale may involve money or any other material consideration, delivery may be with or without consideration.
[45]

Appellant Rosales contends that while criminal intent need not generally be proved in crimes that
are mala prohibita, knowledge that the sack in his possession contained a prohibited drug must nevertheless
be established. Indeed, Section 2(f) of the Dangerous Drugs Law requires that a person who delivers a
prohibited drug must knowingly pass such contraband to another person. Thus, in one case, the Court has
said:
x x x. While it is true that the non-revelation of the identity of an informer is a standard practice in drug cases, such is
inapplicable in the case at bar as the circumstances are different. The would-be buyers testimony was absolutely
necessary because it could have helped the trial court in determining whether or not the accused-appellant
had knowledge that the bag contained marijuana, such knowledge being an essential ingredient of the offense for which
he was convicted. The testimony of the poseur-buyer (not as an informer but as a `buyer) as to the alleged agreement to
sell therefore became indispensable to arrive at a just and proper disposition of this case.
[46]

In this case, the trouble appears to be that appellant Rosales incorrectly assumes to be, or gives an
impression of being, unaware of the prohibited drug involved in the questioned transaction with appellant
Enriquez; in point of fact, however, it is sufficiently shown that Rosales has known all along that the deal
between Enriquez and the poseur-buyers had only to do with marijuana.
Appellant Rosales believes that his act of carrying the sack of marijuana is a mere attempt to deliver the
prohibited drug. In other words, the sack being still within his control, he could, he states, have easily
refused to deliver the item to the poseur-buyer. Here, he seeks to capitalize on his being supposedly still in
the subjective phase of the crime.Appellant Rosales thus submits that, if found guilty, he should only be held
accountable for attempted delivery of a prohibited drug.

Article 6 of the Revised Penal Code provides:

"ART. 6. Consummated, frustrated, and attempted felonies. - Consummated felonies, as well as those which are
frustrated and attempted, are punishable.
"A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is
frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but
which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.
"There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the felony by reason of some cause or accident other than his
own spontaneous desistance."
The subjective phase in the commission of a felony is that portion of its execution starting from the point
where the offender begins by overt acts to pursue the crime until he is prevented, against his will, by some
outside cause from performing all of the acts which would produce the offense. If the subjective phase has
not yet passed, then the crime is only attempted. If that phase has been done but the felony is not produced,
the crime is frustrated. The crime is consummated if, following the subjective phase, the last of the
elements of the felony meets to concur. These rules are inapplicable to offenses governed by special laws.
[47]

[48]

Unfortunately for appellant, the crime with which he is being charged is penalized by a special law. The
incomplete delivery claimed by appellant Rosales, granting that it is true, is thus inconsequential. The act of
conveying prohibited drugs to an unknown destination has been held to be punishable, and it is immaterial
whether or not the place of destination of the prohibited drug is reached.
[49]

[50]

In sum, the facts proven beyond reasonable doubt in this case were that: (a) Two police officers, one of
them a woman, conceived of and executed a buy-bust operation; (b) the operation led to the red-handed

apprehension of appellant Rosales just as he delivered the illegal drug; and (c) appellant Enriquez who had
peddled the same to the poseur-buyer was himself later arrested shortly thereafter. The sale and delivery of
marijuana constituted punishable acts under Section 4, Article II, of R.A. No. 6425, as amended.Appellants
Enriquez and Rosales should bear the consequences of their trifling with the law. The two evidently
confederated towards the common purpose of selling and delivering marijuana. Conspiracy could be inferred
from the acts of the accused, whose conduct before, during and after the commission of the crime would
show its existence. It was appellant Rosales who brought the poseur-buyer to appellant Enriquez for the
purchase of marijuana. It was upon the instruction of appellant Enriquez, apparently to retain control of the
unpaid portion of the six-kilogram contraband, that appellant Rosales was to carry the sack to the supposed
residence of the poseur-buyers. In conspiracy, the act of one conspirator could be held to be the act of the
other.
[51]

[52]

R.A. No. 7659, amending the Dangerous Drugs Law, now provides that if the quantity of drugs involved
in any of the punishable acts is more than any of the amounts specified in the law, the penalty of reclusion
perpetua to death must be imposed. Considering that the marijuana involved here weighed more than 750
grams, the maximum specified amount for marijuana, appellants, ordinarily, are to be meted that penalty. An
amendatory law, however, may only be applied retroactively if it proves to be beneficial to the appellants. In
this case, it would not be that favorable to them; hence, like in People vs. Ballagan, the Court could only
impose the penalty of life imprisonment upon appellants.The penalty of reclusion perpetua would mean that
the accused would also have to suffer the accessories carried by that penalty, as well as the higher fine,
provided for by R.A. No. 7659. Appellants must, accordingly, still bear the penalty imposed on them by the
trial court.
[53]

[54]

[55]

WHEREFORE, the questioned Decision of 21 January 1991 of the Regional Trial Court of Manila, finding
appellants Ernesto Enriquez and Wilfredo Rosales guilty beyond reasonable doubt of the crime punished by

Section 4, Article II, of R.A. No. 6425, as amended, and imposing on them the penalty of life imprisonment
and the payment of the fine of P30,000 is AFFIRMED. Costs against appellants.
SO ORDERED.
Davide, Jr., Acting Chief Justice, (Chairman), Bellosillo, and Kapunan, JJ., concur.

[G.R. No. 122099. July 5, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AGAPITO LISTERIO y PRADO and SAMSON
DELA TORRE y ESQUELA, accused,
AGAPITO LISTERIO y PRADO, accused-appellant.
DECISION
YNARES-SANTIAGO, J.:

For the deadly assault on the brothers Jeonito Araque and Marlon Araque, Agapito Listerio y Prado,
Samson dela Torre y Esquela, Marlon dela Torre, George dela Torre, Bonifacio Bancaya and several others
who are still at large were charged in two (2) separate Amended Informations with Murder and Frustrated
Murder.

In Criminal Case No. 91-5842 the Amended Information[1] for Murder alleges
That on or about the 11th day of August 1991 in the Municipality of Muntinlupa, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating
together and mutually helping and aiding one another, all armed with bladed weapons and GI lead pipes,
with intent to kill, treachery and evident premeditation with abuse of superior strength did then and there
willfully, unlawfully and feloniously attack, assault and stab one Jeonito Araque y Daniel at the back of his
body, thereby inflicting upon the latter mortal wounds which directly caused his death.
CONTRARY TO LAW.
In Criminal Case No. 91-5843, the Amended Information[2] for Frustrated Homicide charges:
That on or about the 14th day of May 1991 in the Municipality of Muntinlupa, Metro Manila, Philippines and
within the jurisdiction this Honorable Court, the above-named accused, conspiring, confederating together,
mutually helping and aiding one another, with intent to kill did then and there willfully, unlawfully and
feloniously stab and hit with a lead pipe and bladed weapon one Marlon Araque y Daniel on the vital portions
of his body, thereby inflicting serious and mortal wounds which would have cause[d] the death of the said
victim thus performing all the acts of execution which should have produce[d] the crime of Homicide as a
consequence but nevertheless did not produce it by reason of causes independent of their will, that is by
timely and able medical attendance rendered to said Marlon Araque y Daniel which prevented his death.
CONTRARY TO LAW.
Upon arraignment, accused Agapito Listerio y Prado and Samson dela Torre y Esquela pleaded not
guilty to the crimes charged. Their other co-accused have remained at large.
Trial thereafter ensued after which the court a quo rendered judgment only against accused Agapito
Listerio because his co-accused Samson dela Torre escaped during the presentation of the prosecutions
evidence and he was not tried in absentia. The dispositive portion of the decision[3] reads:

WHEREFORE, finding Accused AGAPITO LISTERIO guilty beyond reasonable doubt, he is sentenced:
1. For the death of Jeonito Araque y Daniel in Criminal Case NO. 91-5842, RECLUSION PERPETUA;
2. For the attempt to kill Marlon Araque y Daniel, in Criminal Case No. 91-5843, he is sentenced to six (6) months and one
(1) day as minimum, to four (4) years as maximum;
3. As civil indemnity, he is ordered to indemnify the heirs of Jeonito Araque y Daniel the sum[s] of :

P54,200.66 as actual damages;

P50,000.00 as moral damages;
P5,000.00 as exemplary damages.
4. And for the damages sustained by Marlon Araque y Daniel, he is required to pay Marlon Araque y Daniel, the sum[s] of :

P5,000.00 as actual damages;

P5,000.00 as moral damages; and
P5,000.00 as exemplary damages
SO ORDERED.[4]
Dissatisfied, accused Agapito Listerio interposed this appeal alleging that
I

THE PROSECUTION EVIDENCE FAILED TO ESTABLISH THE GUILT OF THE ACCUSED BEYOND
REASONABLE DOUBT.
II

THE COURT CONVICTED THE ACCUSED OF THE CRIME OF MURDER AND ATTEMPTED
HOMICIDE DESPITE ABSENCE OF PROOF OF CONSPIRACY AND AGGRAVATING
CIRCUMSTANCE OF TREACHERY.
The version of the prosecution of what transpired on that fateful day of August 14, 1991 culled from the
eyewitness account of Marlon Araque discloses that at around 5:00 p.m. of August 14, 1991, he and his
brother Jeonito were in Purok 4, Alabang, Muntinlupa to collect a sum of money from a certain Tino. [5] Having
failed to collect anything from Tino, Marlon and Jeonito then turned back.[6] On their way back while they
were passing Tramo near Tinos place,[7] a group composed of Agapito Listerio, Samson dela Torre, George
dela Torre, Marlon dela Torre and Bonifacio Bancaya [8] blocked their path[9] and attacked them with lead pipes
and bladed weapons.[10]
Agapito Listerio, Marlon dela Torre and George dela Torre, who were armed with bladed weapons,
stabbed Jeonito Araque from behind.[11] Jeonito sustained three (3) stab wounds on the upper right portion of
his back, another on the lower right portion and the third on the middle portion of the left side of his
back[12] causing him to fall down.[13]Marlon Araque was hit on the head by Samson dela Torre and Bonifacio
Bancaya with lead pipes and momentarily lost consciousness. [14] When he regained his senses three (3)
minutes later, he saw that Jeonito was already dead. [15] Their assailants then fled after the incident. [16] Marlon
Araque who sustained injuries in the arm and back,[17] was thereafter brought to a hospital for treatment.[18]
Marlon Araque was examined by Dr. Salvador Manimtim, head of the Medico Legal Division of the UPPGH, [19] who thereafter issued a Medical Certificate[20] indicating that Marlon Araque sustained two (2)
lacerated wounds, one measuring 5 centimeters in length located in the center (mid-parietal area) of the ear.
[21]
The second lacerated wound measuring 2 centimeters in length is located at the mid-frontal area
commonly known as the forehead.[22] A third lacerated wound measuring 1.5 centimeters long is located at
the forearm[23] and a fourth which is a stab wound measuring 3 centimeters is located at the right shoulder at
the collar.[24] Elaborating on the nature of Marlon Araques injuries, Dr. Manimtim explained in detail during
cross-examination that the two (2) wounds on the forearm and the shoulder were caused by a sharp object
like a knife while the rest were caused by a blunt instrument such as a lead pipe.[25]

Dr. Bievenido Munoz, NBI Medico Legal Officer conducted an autopsy on the cadaver of Jeonito
Araque[26] and prepared an Autopsy Report[27] of his findings. The report which contains a detailed description
of the injuries inflicted on the victim shows that the deceased sustained three (3) stab wounds all of them
inflicted from behind by a sharp, pointed and single-bladed instrument like a kitchen knife, balisong or any
similar instrument.[28] The first stab wound, measuring 1.7 centimeters with an approximate depth of 11.0
centimeters, perforated the lower lobe of the left lung and the thoracic aorta. [29] Considering the involvement
of a vital organ and a major blood vessel, the wound was considered fatal. [30] The second wound, measuring
2.4 centimeters, affected the skin and underlying soft tissues and did not penetrate the body cavity. [31] The
third wound measuring 2.7 centimeters was like the second and involved only the soft tissues. [32] Unlike the
first, the second and third wounds were non-fatal.[33] Dr. Munoz averred that of the three, the first and second
wounds were inflicted by knife thrusts delivered starting below going upward by assailants who were
standing behind the victim.[34]
On the other hand, accused-appellants version of the incident is summed thus in his brief:
1. Accused-appellant is 39 years old, married, side walk vendor and a resident of Purok 4, Bayanan,
Muntinlupa, Metro Manila. He earns a living by selling vegetables.[35]
2. At around 1:00 oclock in the afternoon of August 14, 1991, Accused-Appellant was in the store of Nimfa
Agustin having a little fun with Edgar Demolador and Andres Gininao drinking beer. At around 2:00 oclock
Accused-appellant went to his house and slept.[36]
3. While asleep, at about 5 oclock, Edgar Remolador and Andres Gininao woke him up and told him there
was a quarrel near the railroad track.[37]
4. At around 6:00 oclock two (2) policemen passed by going to the house of Samson de la Torre while
Accused-appellant was chatting with Edgar Remolador and Andres Gininao.These two (2) policemen
together with co-accused Samson de la Torre came back and invited Accused-appellant for questioning at
the Muntinlupa Police Headquarters together with Edgar Demolador and Andres Gininao. Subsequently,
Edgar Demolador and Andres Gininao were sent home.[38]

5. At the Police Station, Accused-Appellant was handed a Sinumpaang Salaysay executed by Marlon
Araque, implicating him for the death of Jeonito Araque and the frustrated murder of Marlon
Araque. Accused-Appellant confronted Marlon Araque as to why he was being included in the case. Marlon
Araque answered because you eject[ed] us from your house.[39]
Professing his innocence, accused-appellant claims that Marlon Araques uncorroborated testimony
failed to clearly and positively identify him as the malefactor responsible for his brothers death. In fine, he
insists that Marlons testimony is insufficient to convict him of the crimes charged.
We disagree.
It is well settled that witnesses are to be weighed, not numbered, such that the testimony of a single,
trustworthy and credible witness could be sufficient to convict an accused. [40] More explicitly, the well
entrenched rule is that the testimony of a lone eyewitness, if found positive and credible by the trial court is
sufficient to support a conviction especially when the testimony bears the earmarks of truth and sincerity and
had been delivered spontaneously, naturally and in a straightforward manner. It has been held that
witnesses are to be weighed not numbered; hence, it is not at all uncommon to reach a conclusion of guilt
on the basis of the testimony of a single witness.[41]
The trial court found Marlon Araques version of what transpired candid and straightforward. We defer to
the lower courts findings on this point consistent with the oft-repeated pronouncement that: the trial judge is
the best and the most competent person who can weigh and evaluate the testimony of witnesses. His
firsthand look at the declarants demeanor, conduct and attitude at the trial places him in a peculiar position
to discriminate between the true and the false. Consequently appellate courts will not disturb the trial courts
findings save only in cases where arbitrariness has set in and disregard for the facts important to the case
have been overlooked.[42]
The account of Marlon Araque as to how they were assaulted by the group of accused-appellant was
given in a categorical, convincing and straightforward manner:
Q Mr. Witness, do you know a certain Jeonito Araque y Daniel?
A Yes, sir.

Q And why do you know him?

A He is my brother.
Q Where is Jeonito Araque now?
A He is already dead.
Q When did he die?
A Last August 14.
Q Do you know of your own knowledge how he died?
A Yes, sir.
Q Will you please inform the Honorable Court what is your own knowledge?
A He was stabbed, sir.
Q Do you know the person or persons who stabbed him?
A Yes, sir.
Q Will you please inform the Honorable Court who are these person or persons, if you know?
A Its (sic) Agapito Listerio, Samson dela Torre, George dela Torre, Marlon dela Torre and Bonifacio.
Q Now if these persons [are] inside the courtroom, could you identify them?
A They (sic) are only two persons but the three persons is (sic) not around.
Q Could you please point to this Honorable Court who are these two persons in side the courtroom?
A Yes, sir (Witness pointing to a persons [sic] and when asked [identified themselves as] Agapito Listerio and Samson dela Torre.)
Q Now, at around 5:00 oclock in the afternoon of August 14, 1991, do you recall where were you?
A Yes, sir.
Q Will you please inform the Honorable Court where were you at that time?
A Im in Alabang at Purok 4 and Im collecting.
Q Do you have any companion at that time?

A Yes, sir.
Q What are you doing at that time in [that] particular date?
A Im collecting from a certain Tino.
Q Were you able to collect?
A No, sir.
Q If you said that there were no collections, what did you do?
A We went back.
Q When you went back, did you have any companion?
A Yes, sir.
Q Who was your companion?
A My brother.
Q While you were going back, was there any untoward incidents that happened?
A Yes sir Hinarang po kami.
Q Now, what particular place [where] you were waylaid, if you recall?
A In Tramo, near Tinos place.
Q And who were the persons that were waylaid (sic)?
A Agapito Listerio, Samson dela Torre, George dela Torre and Bonifacio.
Q Will you please inform the Honorable Court how will (sic) you waylaid by these persons?
A We were walking then suddenly they stabbed us with knife (sic) and ran afterwards.
Q Who were the persons that waylaid you?
A Agapito Listerio, George and Marlon.
Q How about your brother, what happened to him?
A He fall (sic) down.

Q And after he fall (sic) down, do you know what happened?

A I was hit by a lead pipe thats why I painted (sic).
Q Do you know the reason why your brother fall (sic) down?
A I cannot recall, sir. Because I already painted (sic).
Q Do you know the reason why your brother fall (sic) before you painted (sic)?
A Yes, sir.
Q Will you please inform the Honorable Court why your brother fall (sic) down?

xxx xxx xxx

A Yes, sir, because he was stabbed.
Q What particular place of his body was [he] stabbed if you know?
A At the back of his body.
Q Do you know the person or persons who was (sic) stabbed him?
A Yes, sir.
Q Will you please inform the Honorable Court who was that persons was stabbed him?
A Agapito, Marlon and George.
COURT
How many stabbed [him], if you know?
A Three (3), sir.
COURT
In what particular part of his body was stabbed wound (sic)?
A Witness pointing to his back upper right portion of the back, another on the lower right portion and another on the middle portion
of the left side at the back.
COURT
Proceed.

Q Will you please inform the Honorable Court why you are (sic) lost consciousness?
A I was hit by [a] lead pipe by Samson and Bonifacio.
Q And when did you regain consciousness?
A After three minutes.
Q And when you gain[ed] consciousness, what happened to your brother?
A He was already dead.
Q How about you, what did you do?
A I go (sic) to the Hospital.
Q How about the accused, the persons who way laid, what happened to them?
A From what I know, they ran away.[43]

Persistent efforts by defense counsel to establish that the attack was provoked, by eliciting from Marlon
Araque an admission that he and the deceased had a drinking spree with their attackers prior to the incident,
proved futile as Marlon steadfastly maintained on cross examination that he and his brother never drank
liquor on that fateful day:
Q After your work, was there an occasion when you drink something with your borther (sic)?
A No, sir.
Q And you stand to your testimony that you never drink (sic) on August 14, 1991?
A Yes, sir.
Q Were (sic) there no occasion on August 14, 1991 when you visited Sonny Sari-Sari Store at 4:00 p.m. on August 14, 1991?
A No, sir.
Q And did you not have a drinking spree with George dela Torre?
A No, sir.
Q Marlon dela Torre?
A No, sir.

Q Bonifacio?
A With your borther (sic)?
Q So you want to tell this Honorable Court that there was no point in time on August 14, 1991 at 4:00 p.m. that you did not take a
sip of wine?
A No, sir.
Q Neither your brother?
Atty. Agoot
Objection, Your Honor, the question is vague.
COURT
Ask another question.
Q Mr. Witness, will you please tell the Honorable Court where this George dela Torre, Marlon dela Torre and a certain Bonifacio
were?
Atty. Agoot
Witness is incompetent.
Q Mr. Witness, you testified that it was your brother the deceased who invited you to Purok 4?
A Yes, sir.
Atty. Lumakang
That will be all for the witness, your Honor.[44]

That Marlon was able to recognize the assailants can hardly be doubted because relatives of the victim
have a natural knack for remembering the faces of the attackers and they, more than anybody else, would
be concerned with obtaining justice for the victim by the felons being brought to the face of the law. [45] Indeed,
family members who have witnessed the killing of a loved one usually strive to remember the faces of the
assailants.[46] Marlons credibility cannot be doubted in this case because as a victim himself and an
eyewitness to the incident, it can be clearly gleaned from the foregoing excerpts of his testimony that he
remembered with a high degree of reliability the identity of the malefactors.[47]

Likewise, there is no showing that he was motivated by any ill-feeling or bad blood to falsely testify
against accused-appellant. Being a victim himself, he is expected to seek justice. It is settled that if the
accused had nothing to do with the crime, it would be against the natural order of events to falsely impute
charges of wrongdoing upon him.[48]Accused-appellant likewise insists on the absence of conspiracy and
treachery in the attack on the victims.
We remain unconvinced.
It must be remembered that direct proof of conspiracy is rarely found for criminals do not write down their
lawless plans and plots.[49] Conspiracy may be inferred from the acts of the accused before, during and after
the commission of the crime which indubitably point to and are indicative of a joint purpose, concert of action
and community of interest.[50]Indeed
A conspiracy exists when two or more persons come to an agreement concerning the commission of a
felony and decide to commit it. To establish the existence of a conspiracy, direct proof is not essential
since it may be shown by facts and circumstances from which may be logically inferred the existence of
a common design among the accused to commit the offense charged, or it may be deduced from the
mode and manner in which the offense was perpetrated.[51]
More explicitly
conspiracy need not be established by direct evidence of acts charged, but may and generally must be
proved by a number of indefinite acts, conditions and circumstances, which vary according to the purpose
accomplished. Previous agreement to commit a crime is not essential to establish a conspiracy, it being
sufficient that the condition attending to its commission and the acts executed may be indicative of a
common design to accomplish a criminal purpose and objective. If there is a chain of circumstances to that
effect, conspiracy can be established.[52]
Thus, the rule is that conspiracy must be shown to exist by direct or circumstantial evidence, as clearly and
convincingly as the crime itself.[53] In the absence of direct proof thereof, as in the present case, it may be
deduced from the mode, method, and manner by which the offense was perpetrated, or inferred from the

acts of the accused themselves when such acts point to a joint purpose and design, concerted action and
community of interest.[54] Hence, it is necessary that a conspirator should have performed some overt acts as
a direct or indirect contribution in the execution of the crime planned to be committed. The overt act may
consist of active participation in the actual commission of the crime itself, or it may consist of moral
assistance to his con-conspirators by being present at the commission of the crime or by exerting moral
ascendancy over the other co-conspirators.[55]
Conspiracy transcends mere companionship, it denotes an intentional participation in the transaction
with a view to the furtherance of the common design and purpose. [56]Conspiracy to exist does not require an
agreement for an appreciable period prior to the occurrence.[57] From the legal standpoint, conspiracy exists
if, at the time of the commission of the offense, the accused had the same purpose and were united in its
execution.[58] In this case, the presence of accused-appellant and his colleagues, all of them armed with
deadly weapons at the locus criminis, indubitably shows their criminal design to kill the victims.
Nowhere is it more evident than in this case where accused-appellant and his cohorts blocked the path
of the victims and as a group attacked them with lead pipes and bladed weapons. Accused-appellant and
his companions acted in concert during the assault on the victims. Each member of the group performed
specific and coordinated acts as to indicate beyond doubt a common criminal design or purpose. [59] Thus,
even assuming arguendo that the prosecution eyewitness may have been unclear as to who delivered the
fatal blow on the victim, accused-appellant as a conspirator is equally liable for the crime as it is
unnecessary to determine who inflicted the fatal wound because in conspiracy, the act of one is the act of
all.[60]
As to the qualifying circumstances here present, the treacherous manner in which accused-appellant
and his group perpetrated the crime is shown not only by the sudden and unexpected attack upon the
unsuspecting and apparently unarmed victims but also by the deliberate manner in which the assault was
perpetrated. In this case, the accused-appellant and his companions, all of them armed with bladed
weapons and lead pipes, blocked (hinarang) the path of the victims effectively cutting off their escape. [61] In
the ensuing attack, the deceased was stabbed three (3) times from behind by a sharp, pointed and singlebladed instrument like a kitchen knife, balisong or similar instrument[62] while Marlon Araque sustained

lacerated wounds in the head caused by blows inflicted by lead pipes as well as stab wounds on the
shoulder and forearm which were caused by a sharp object like a knife.[63]
It must be noted in this regard that the manner in which the stab wounds were inflicted on the deceased
were clearly meant to kill without posing any danger to the malefactors considering their locations and the
fact that they were caused by knife thrusts starting below going upward by assailants who were standing
behind the victim.[64] Treachery is present when the offender commits any of the crimes against persons
employing means, methods or forms in the execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which the offended party might make. [65] That
circumstance qualifies the crime into murder.
The commission of the crime was also attended by abuse of superior strength on account of the fact that
accused-appellant and his companions were not only numerically superior to the victims but also because all
of them, armed with bladed weapons and lead pipes, purposely used force out of proportion to the means of
defense available to the persons attacked. However, this aggravating circumstance is already absorbed in
treachery.[66] Furthermore, although alleged in the information, evident premeditation was not proved by the
prosecution. In the light of the finding of conspiracy, evident premeditation need not be further appreciated,
absent concrete proof as to how and when the plan to kill was hatched or what time had elapsed before it
was carried out.[67]
In stark contrast to the evidence pointing to him as one of the assailants of the victims, accusedappellant proffers the defense of alibi. At the risk of sounding trite, it must be remembered that alibi is
generally considered with suspicion and always received with caution because it can be easily fabricated.
[68]
For alibi to serve as a basis for acquittal, the accused must establish that: a.] he was present at another
place at the time of the perpetration of the offense; and b.] it would thus be physically impossible for him to
have been at the scene of the crime.[69]
Suffice it to state that accused-appellant failed to discharge this burden. The positive identification of the
accused as one of the perpetrators of the crime by the prosecution eyewitness, absent any showing of illmotive, must prevail over the weak and obviously fabricated alibi of accused-appellant. [70] Furthermore, as
aptly pointed out by the trial court [t]he place where the accused was at the time of the killing is only 100

meters away. The distance of his house to the place of the incident makes him physically possible to be a
participant in the killing [of Jeonito] and [the] wounding of Marlon.[71]
All told, an overall scrutiny of the records of this case leads us to no other conclusion than that accusedappellant is guilty as charged for Murder in Criminal Case No. 91-5842.
In Criminal Case No. 91-5843, wherein accused-appellant was indicted for Frustrated Homicide, the trial
court convicted accused-appellant of Attempted Homicide only on the basis of Dr. Manimtims testimony that
none of the wounds sustained by Marlon Araque were fatal.
The reasoning of the lower court on this point is flawed because it is not the gravity of the wounds
inflicted which determines whether a felony is attempted or frustrated butwhether or not the subjective
phase in the commission of an offense has been passed. By subjective phase is meant [t]hat portion of the
acts constituting the crime included between the act which begins the commission of the crime and the last
act performed by the offender which, with the prior acts, should result in the consummated crime. From that
time forward, the phase is objective. It may also be said to be that period occupied by the acts of the
offender over which he has control that period between the point where he begins and the point where
he voluntarily desists. If between these two points the offender is stopped by reason of any cause outside of
his own voluntary desistance, the subjective phase has not been passed and it is an attempt. If he is not so
stopped but continues until he performs the last act, it is frustrated.[72]
It must be remembered that a felony is frustrated when: 1.] the offender has performed all the acts of
execution which would produce the felony; 2.] the felony is not produced due to causes independent of the
perpetrators will.[73] On the other hand, in an attempted felony: 1.] the offender commits overt acts to
commence the perpetration of the crime; 2.] he is not able to perform all the acts of execution which should
produce the felony; and 3.] his failure to perform all the acts of execution was due to some cause or accident
other than his spontaneous desistance.[74] The distinction between an attempted and frustrated felony was
lucidly differentiated thus in the leading case of U.S. v. Eduave:[75]
A crime cannot be held to be attempted unless the offender, after beginning the commission of the crime by
overt acts, is prevented, against his will, by some outside cause from performing all of the acts which should
produce the crime. In other words, to be an attempted crime the purpose of the offender must be thwarted

by a foreign force or agency which intervenes and compels him to stop prior to the moment when he has
performed all of the acts which should produce the crime as a consequence, which acts it is his intention to
perform. If he has performed all the acts which should result in the consummation of the crime
and voluntarily desists from proceeding further, it cannot be an attempt.The essential element which
distinguishes attempted from frustrated felony is that, in the latter, there is no intervention of a foreign or
extraneous cause or agency between the beginning of the commission of crime and the moment when all
the acts have been performed which should result in the consummated crime; while in the former there is
such intervention and the offender does not arrive at the point of performing all of the acts which should
produce the crime. He is stopped short of that point by some cause apart from his voluntary desistance.
To put it another way, in case of an attempt the offender never passes the subjective phase of the
offense. He is interrupted and compelled to desist by the intervention of outside causes before the subjective
phase is passed.
On the other hand, in case of frustrated crimes, the subjective phase is completely passed. Subjectively the
crime is complete. Nothing interrupted the offender while he was passing through the subjective phase. The
crime, however, is not consummated by reason of the intervention of causes independent of the will of the
offender. He did all that was necessary to commit the crime. If the crime did not result as a consequence it
was due to something beyond his control.
In relation to the foregoing, it bears stressing that intent to kill determines whether the infliction of injuries
should be punished as attempted or frustrated murder, homicide, parricide or consummated physical
injuries.[76] Homicidal intent must be evidenced by acts which at the time of their execution are unmistakably
calculated to produce the death of the victim by adequate means. [77] Suffice it to state that the intent to kill of
the malefactors herein who were armed with bladed weapons and lead pipes can hardly be doubted given
the prevailing facts of the case. It also can not be denied that the crime is a frustrated felony not an
attempted offense considering that after being stabbed and clubbed twice in the head as a result of which he
lost consciousness and fell, Marlons attackers apparently thought he was already dead and fled.

An appeal in a criminal case throws the whole case wide open for review [78] and the reviewing tribunal
can correct errors, though unassigned in the appealed judgement [79] or even reverse the trial courts decision
on the basis of grounds other than those that the parties raised as errors. [80] With the foregoing in mind, we
now address the question of the proper penalties to be imposed.
With regard to the frustrated felony, Article 250 of the Revised Penal Code provides that
ART. 250. Penalty for frustrated parricide, murder, or homicide. The courts, in view of the facts of the case,
may impose upon the person guilty of the frustrated crime of parricide, murder or homicide, defined and
penalized in the preceding articles, a penalty lower by one degree than that which should be imposed under
the provisions of article 50.[81]
The courts, considering the facts of the case, may likewise reduce by one degree the penalty which under
article 51 should be imposed for an attempt to commit any of such crimes.
The penalty for Homicide is reclusion temporal[82] thus, the penalty one degree lower would be prision
mayor.[83] With the presence of the aggravating circumstance of abuse of superior strength and no mitigating
circumstances, the penalty is to be imposed in its maximum period. [84] Prision mayor in its maximum period
ranges from ten (10) years and one (1) day to twelve (12) years. Applying further the Indeterminate
Sentence Law,[85] the minimum of the imposable penalty shall be within the range of the penalty next lower in
degree, i.e. prision correccional in its maximum period which has a range of six (6) months and one (1) day
to six (6) years.
What now remains to be determined is the propriety of the awards made by the trial court with regard to
the civil aspect of the case for the death of Jeonito Araque and the injuries sustained by Marlon Araque.
Anent actual or compensatory damages, it bears stressing that only substantiated and proven expenses
or those which appear to have been genuinely incurred in connection with the death, wake or burial of the
victim will be recognized by the courts. [86] In this case, the expenses incurred for the wake, funeral and burial
of the deceased are substantiated by receipts.[87] The trial courts award for actual damages for the death of
Jeonito Araque should therefore be affirmed.

In line with current jurisprudence,[88] the award of P50,000.00 as civil indemnity ex delicto must also be
sustained as it requires no proof other than the fact of death of the victim and the assailants responsibility
therefor.[89] The award for moral damages for the pain and sorrow suffered by the victims family in connection
with his untimely death must likewise be affirmed. The award is adequate, reasonable and with sufficient
basis taking into consideration the anguish and suffering of the deceaseds family particularly his mother who
relied solely upon him for support.[90] The award of exemplary damages should likewise be affirmed
considering that an aggravating circumstance attended the commission of the crime.[91]
The trial court, however, correctly ignored the claim for loss of income or earning capacity of the
deceased for lack of factual basis. The estimate given by the deceaseds sister on his alleged income as a
pre-cast businessman is not supported by competent evidence like income tax returns or receipts. It bears
emphasizing in this regard that compensation for lost income is in the nature of damages [92] and as such
requires due proof thereof.[93] In short, there must be unbiased proof of the deceaseds average income. [94] In
this case, the victims sister merely gave an oral, self-serving and hence unreliable statement of her
deceased brothers income.
As for the awards given to Marlon Araque, the award for actual damages must be affirmed as the same
is supported by documentary evidence.[95] With regard to moral and exemplary damages, the same being
distinct from each other require separate determination.[96] The award for moral damages must be struck
down as the victim himself did not testify as to the moral suffering he sustained as a result of the assault on
his person. For lack of competent proof such an award is improper.[97] The award for exemplary damages
must, however, be retained considering that under Article 2230 of the Civil Code, such damages may be
imposed when the crime is committed with one or more aggravating circumstances.[98]
Finally, this Court has observed that the trial court did not render judgment against accused Samson dela
Torre, notwithstanding that he was arraigned and pleaded not guilty to both charges. Under the
circumstances, he should be deemed to have been tried in absentia and, considering the evidence
presented by the prosecution against him, convicted of the crime charged together with appellant Agapito
Listerio.
WHEREFORE, the appealed decision is AFFIRMED with the following MODIFICATIONS:

1.] the award of P5,000.00 to Marlon Araque by way of moral damages in Criminal Case No. 91-5843 is DELETED;
2.] Accused-Appellant is found GUILTY beyond reasonable doubt in Criminal Case No. 91-5843 of Frustrated Homicide and
is sentenced to suffer an indeterminate penalty of Six (6) Years ofPrision Correccional, as minimum to Ten (10) Years and
One (1) Day of Prision Mayor, as maximum.

After finality of this Decision, the records shall be remanded to the Regional Trial Court of Makati City,
which is directed to render judgment based on the evidence against Samson dela Torre y Esquela.
SO ORDERED.
Davide, Jr., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.